Australian Immigration Daily News

Is a failure to comply with Schedule 3 criteria necessarily “fatal” to a visa application? 

What about in circumstances where there is no possibility of getting Schedule 3 waived? 

For instance, what about in the case of a “New Zealand Citizen Family Relationship” visa (Subclass 461)? 

The Schedule 2 criteria for this visa require – at 461.213(b)(ii) – that if the applicant no longer holds a substantive visa at the time that an application is made for a further Subclass 461 visa, the applicant must satisfy Schedule 3 criteria 3002, 3003, 3004 and 3005.  

And unlike a Subclass 820 Partner (Temporary) visa, in the case of the 461 visa, there is no possibility of getting the Schedule 3 requirements “waived”, or “not applied”.  

So then, if you are subject to Schedule 3, how do you show that your (or your client’s) failure to continue to be the holder of a substantive visa was due to factors beyond your control – as required by 3004(c)? 

These issues were discussed in a recent decision of the Administrate Appeals Tribunal, 1605532 (Migration) (2016) AATA 4101 (13 July 2016). 

What was the background of this case? 

The applicant was originally granted a Subclass 461 visa in July 2011, on the basis of his spousal relationship with his wife, a New Zealand citizen who was in Australia as the holder of a Special Category Subclass 444 visa. The applicant had come to Australia from New Zealand with his family to take up a high level position at the company “DHL” in Canberra.  His first 461 visa was due to expire on 1 February 2016. 

A combination of factors then came together in a “series of unfortunate events” that caused the applicant not to lodge an application for a further 461 visa before his original visa had expired. 

They were as follows:  In September/October 2015, after consulting with a migration agent, the applicant spoke with his company’s HR department to find out if the company would meet the costs of an application for a permanent visa.  Then in late November, the HR department advised the applicant that the company would not support or meet the costs of a permanent visa application.  The applicant then asked the company’s HR department if it would meet the costs of a further 461 temporary visa application.  Again, the HR department advised him that it would get back to him. 

Then, towards the end of January, when the period when his 461 visa would soon be expiring, the applicant was required by his employer to travel to Sydney from Victoria for various work-related meetings.  About the same time, the applicant was extensively involved in consultations with a builder who he had engaged to construct a new home for his family. 

So when the end of January arrived, the applicant became aware that he had not received any advice from his company’s HR department about whether the company would meet the costs of a second 461 visa, and that he had not received any further contact from his migration agent either about lodging a new application. 

So at this point, the applicant realized he needed to take action.  So he completed an application for a second 461 visa on the day that his visa expired, 1 February 2016, and arranged for a courier to take the application to the Department. 

The application was delivered to the Department on 2 February 2016, the day after his 461 visa had expired. 

Was he out of luck, due to being ensnared by Schedule 3? Was the fact that he had not lodged his application for a new 461 visa fatal to the second application? 

Well, the late filing did lead to the refusal of the application by the Department.  What a surprise! 

But fortunately for this particular applicant, he was “rescued” by the AAT. 

Why? 

Well the Tribunal was satisfied that the fact that the applicant no longer held a substantive visa was due to circumstances beyond his control, and that he therefore satisfied criterion 3004(c) of Schedule 3. 

In reaching this conclusion, the Tribunal took into account that the application for the second 461 visa had been lodged only 1 day late.  

The Tribunal also accepted that the fact that the HR department of the applicant’s company did not respond to his request for advice as to whether it would meet the costs of a second 461 visa application,  that the applicant’s migration agent had not taken action to progress his application, the fact that he had been called to Sydney in late January to meet urgent work commitments, and that at the same time he was extensively involved with discussions with his builder regarding the construction of a new family home were all circumstances that were outside his control. 

It is interesting to note that the circumstances that were found to have been beyond the applicant’s control in causing him to no longer be the holder of a substantive visa appeared to be far broader than those referred to in the Department’s Procedures Advice Manual.  

In other words, it appears that the Tribunal interpreted the meaning of “factors  beyond control”, and treated the applicant more “leniently” than might have occurred had the Tribunal strictly applied the policy guidance in PAM. For that policy guidance refers to factors beyond control as encompassing situations such as where a serious accident or illness renders the applicant incapable of making an application or misunderstanding the period when the visa was in effect. 

In short, it appears that this applicant was fortunate to have his case heard by a Tribunal member who was prepared not to apply PAM strictly, and who was satisfied that the fact that the applicant and his family had been in Australia since 2011, that the applicant’s eldest child was enrolled in primary school in Australia, and that the applicant had been employed in a senior position at DHL in Australia since 2011 all amounted to “compelling reasons” for the grant of the visa.  

Or, one might put it another way, that the Tribunal member was “sympathetic” to the applicant’s situation, and was prepared to give weight to these factors! 

The moral of this story? Another applicant might not be so lucky as to find a Tribunal member who is prepared to accept that last-minute work commitments and the need to manage the construction of a new house amount to “factors beyond the applicant’s control”.  

So it is essential that visa holders on temporary visa be very mindful of the date when their visa is due to cease,  that they not rely on their company’s HR department to “handle their visas”, and that they remain vigilant to ensure that a further visa application is prepared and lodged with the Department before their original visa expires. 

Quiz: if there had been a more significant delay on the part of the applicant in lodging the further visa application, do you think the result here would have been the same?

Quiz Part 2: Was this correctly decided by the AAT?

Quiz Part 3: Will the Department seek judicial review?

Quiz Part 4: Wouldn't this issue conceivably have been curable had the applicant simply gone back to NZ and re-applied from offshore?

Quiz Part 5: Does anyone know what typical processing time would be for a 461 application?

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